Dermot O'Kelly, 125 Harold's Cross, Dublin, appeared before Kenmare District Court on Friday charged with driving with excess alcohol at Dromnevane on October 8, 2012.

Mr O'Kelly had admitted to driving a vehicle which had come to the attention of gardaí after it turned left into a cul-de-sac as it approached a traffic check point at approximately 1.40am.

When gardaí followed the dark coloured jeep all occupants had alighted and as Garda Tim O'Sullivan questioned a female about driving the vehicle, Mr O'Kelly stepped forward and stated that he had in fact been the driver.

"When speaking to him I got a smell of intoxicating liquor and cautioned him immediately," Garda O'Sullivan told the court.

The defendant admitted to consuming a pint and a breath test later returned a reading of 61 micrograms in breath alcohol, more than the legal driving limit.

Garda Tom Hurley, who carried out the testing procedure at Cahersiveen Garda Station, then provided details of a 20-minute observation period beginning at 3.07am. Two breath samples were recorded by the station's intoxyliser and both provided identical readings, he then added.

Following the garda's evidence, the solicitor for the defence stated that while evidence of the observation may have been presented to the court, Garda Hurley had "never confirmed" that the suspect had consumed nil-by-mouth.

Judge James O'Connor said he too had a note of this omission and asked Superintendent Flor Murphy to make a counter-submission.

"If there was anything to the contrary it would have been mentioned," the superintendent replied.

Judge O'Connor said there was no room for supposition and then confirmed that Mr O'Kelly was free to go.